Threats key question in Babeu case

In papers filed with Pinal County officials this week, attorneys for an ex-boyfriend of Sheriff Paul Babeu lay out details that they say show Babeu and his lawyer threatened their client to force him to keep quiet about the relationship.

Jose Orozco, a Mexican national who lives in the Valley, wants $1 million in damages from Pinal County for "mental anguish," "public humiliation and embarrassment," and "fear, panic, stress" caused by the intimidation, said the notice of claim, which indicates an intent to file a lawsuit.

But if Orozco sues, it's unclear what his chances are of winning a judgment or settlement. The evidence outlined in the notice of claim gives alleged quotes and messages from Babeu and his attorney Chris DeRose that, on the one hand, have threatening aspects, some legal experts said. But some alleged threats also are ambiguous or implied. An additional hurdle for Orozco would be to demonstrate that the harm to him went beyond hurt feelings, one legal expert said.

A key alleged threat is one that Orozco's attorney Melissa Weiss-Riner said was made by DeRose in a conversation with her on Sept. 12: DeRose told her that because Orozco's visa had expired, "it would be in his best interest" to sign an agreement not to disclose his romance with Babeu, the notice of claim said. Weiss- Riner told The Arizona Republic this week, however, that DeRose never used the word "deportation" or a form of it. DeRose denies the Sept. 12 conversation ever took place.

The sheriff, who is running for Congress in District 4, and DeRose deny making any threats. After Phoenix New Times published an article Feb. 17 with Orozo's allegations and outed Babeu as gay, Babeu denied abusing his authority, acknowledged his sexuality and has since called the incident an effort to ruin him politically.

The notice of claim is directed at Pinal County and names the Sheriff's Office and the Board of Supervisors' three members and its clerk. According to state law, Orozco can take the county to court if it doesn't respond within 60 days.

On Wednesday, the Arizona Counties Insurance Pool, which insures 11 counties for liability, said Babeu and the insurance pool agreed that Orozco's claim is not valid because it involves a private matter. The insurance pool will not respond to the claim and, if the county is sued, will move to dismiss the matter because "it has nothing to do with the county or Sheriff Babeu in his official capacity," said William H. Hardy, executive director of the insurance pool. Hardy said in filing the claim, Orozco is "trying to get to deep pockets."

The four-page claim letter includes a summary of facts and statements about why Orozco and his attorney believe there is liability and a reason to seek damages. The claim is accompanied by copies of e-mails between DeRose and Orozco or Weiss-Riner, sent in early September, early November and mid-January.

The notice of claim said Babeu and Orozco met in 2006 and "had a relationship" for a short time before going their separate ways. About a year later, they ran into each other at a bar and began dating. Orozco created and maintained a website and Twitter account for Babeu's campaign for sheriff in 2008. In early September last year, they had an argument and broke up.

DeRose and Babeu have said Orozco improperly accessed Babeu's Twitter and other re-election Web accounts. DeRose sent a letter to Orozco demanding he stop accessing the accounts or face possible civil or criminal violations. Weiss-Riner told The Republic this week that after receiving the letter, Orozco agreed to stop accessing Babeu's campaign websites and Twitter account as long as Babeu stopped contacting Orozco.

Around this time, the notice of claim said, several alleged threats were made against Orozco:

On Sept. 4, 2011, Babeu told Orozco in what New Times said was a text message, "You can never have business after this and you will harm me and many others in process ... including yourself & your family."

On Sept. 5, Orozco received a call about 2:30 a.m. from someone he believed was in law enforcement calling at Babeu's request. "After he identified himself and who he was calling for, Mr. Orozco hung up the phone," the notice of claim said.

On Sept. 6, Babeu messaged Orozco, "You and Website Results LLC (Orozco's company) will be sued. ... You have crossed the line better get an attorney. You (sic) brother will also be contacted."

Weiss-Riner said after Orozco agreed to sign the cease-and-desist letter and stop accessing the accounts, she thought the matter was settled but DeRose called back Sept. 12 and made an additional request. He also wanted Orozco to sign a document promising to stop talking about his relationship with Babeu, including in blog posts online, Weiss-Riner said. She said DeRose told her that he wanted Orozco to stop talking about their relationship because it could potentially embarrass Babeu.

Orozco refused to sign any document promising not to talk about their relationship, Weiss-Riner said. She said she told DeRose on the phone, "He is not interested in that agreement."

She said DeRose asked why not. Weiss-Riner said she told DeRose it was because Orozco "isn't embarrassed" by their relationship. That is when DeRose made the threat, Weiss-Riner said.

"He said, 'Well, he should be because it's my understanding his student visa is expired,' " Weiss-Riner said. "That is exactly what he said."

"I said, 'Are you kidding me?'" Weiss-Riner said.

She said she told DeRose, "Don't you think that would be worse for your client?"

DeRose asked why, she said.

"I said, 'Because of his stance on illegal immigration,' " Weiss-Riner said. "I was just shocked that he would say it."

When asked Tuesday if she interpreted DeRose's comment to mean Orozco could be deported if he didn't agree to keep quiet about the relationship, Weiss-Riner responded, "People can draw their own conclusion."

"I am not going to talk about his immigration at all," she said, adding that she does not practice immigration law and she is only representing Orozco on the civil matter.

DeRose denies ever having the Sept. 12 conversation and on Wednesday repeated his claim that he never asked Orozco to sign a non-disclosure contract.

"The only thing I ever wanted him to sign was an agreement to refrain from further attacks on our website, Twitter, or online transaction systems," DeRose told The Republic. "If you look at her first letter to me, she says that Jose would not sign anything but would refrain from further attacks on the website. I took her at her word."

On Jan. 11 of this year, DeRose sent an e-mail to Weiss-Riner alleging that Orozco was the source of an anonymous comment on a Chino Valley website that said Babeu is gay and had posted revealing photos of himself. A copy of the mail is included in the notice of claim. "We can't control our clients, but when we can't, we shouldn't make promises for them," DeRose told Weiss-Riner.

Expert: Orozco must prove damages

Orozco contends the facts provided in the claim will demonstrate abuses of power, constitutional violations, malicious prosecution, conspiracy, defamation, negligence and infliction of emotional distress. Babeu and his offices used "tactics such as threats and intimidation of harm in a calculated effort to silence Mr. Orozco, effectively placing Mr. Orozco in fear."

As a result, "Mr. Orozco's reputation and integrity have been tarnished, (and) he continues to fear for the safety of himself and his family," the notice states.

Michael Manning, a Phoenix attorney who's handled constitutional claims against law enforcement but is not involved with the Orozco case, said the messages allegedly sent by Babeu are "threats to be taken seriously."

What isn't as clear was Orozco's ability to prove he suffered damages, Manning said.

"For this to have any legs as a serious civil matter, Mr. Orozco would have to show how he was damaged other than losing sleep or having his feelings hurt," Manning said.

Jose de Jesus Rivera, a former U.S. attorney for Arizona who now practices civil law, said comments about invoking someone's visa could easily be interpreted as a threat of deportation, especially if it came from a lawyer representing a chief law-enforcement officer.

"I think that's not an unreasonable interpretation of those facts," said Rivera, who is not involved in the case.

"I think it's definitely pushing the ball more towards the fact that it's a threat than just an average conversation," Rivera said. "If I am looking at this from Orozco's point of view, it's not John Doe from down the street who's making this conversation. It's a law-enforcement agent who obviously has better access to (Immigration and Customs Enforcement) and people who have the authority (to deport people), as opposed to say a plumber. You have to look at the totality of the circumstances."

Rivera said, however, that there could still be problems with the case, even if a jury agreed that DeRose had implied a threat of deportation.

"You don't know whether Babeu gave him the authority to make that threat," Rivera said. "You don't know whether Babeu had knowledge of that."

Rivera also said that making an implied threat alone is not enough to make a strong case, especially if no one else heard it.

"It's hard to show from that comment alone whether there is an intent to do a deportation," he said. "You take a case with all the other evidence combined, not just an iota of evidence."